Podcast Episodes on Public-Private Property Rights at Intersecting Corners

Addicting

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How will Eshleman’s attorneys prove that the corner crossing negatively impacted his property value without there being any physical damage to corroborate their claims or without the ranch having been sold on the open market at a loss?

The opinion that his property value is now diminished has nothing other than (a/several?)real estate agent’s opinion of diminished market value.


If I were a member of the jury, I would want to know how the rationale justifying awarded damages in this case could be applied to other cases equally.
What if he wins his case, then sells the property for more than what he paid?
 

Gerald Martin

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What if he wins his case, then sells the property for more than what he paid?

And how much did the property value diminish or rise?

Real estate values are highly speculative until a property actually sells on the open market.

If the hunters are not found liable for damages, can they counter sue for lost time, lawyer fees, etc. as a deterrent to future property owners who might threaten lawsuits against corner crossers as an intimidation tactic? Most folks don’t want the hassle of going through this type of litigation and as a result can be intimidated from accessing something they are legally entitled to access.
 

Addicting

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And how much did the property value diminish or rise?

Real estate values are highly speculative until a property actually sells on the open market.

If the hunters are not found liable for damages, can they counter sue for lost time, lawyer fees, etc. as a deterrent to future property owners who might threaten lawsuits against corner crossers as an intimidation tactic? Most folks don’t want the hassle of going through this type of litigation and as a result can be intimidated from accessing something they are legally entitled to access.
It’s my opinion that the land is worth more now than it ever was. He is in a prime position to do a land swap, and make the ranch continuous. He’s also in a position where he can sell an easement from the publicity that’s been generated.

What makes my opinion different than his opinion, they’re both opinions
 

Nicoli7153

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Actually this topic in general would be great to hear a bunch of thoughts about.

Basically in a very general broad view, can an adjacent property owner's actions that directly negatively impact your property, lead to you being entitled to compensation for lost value? I think if it starts there, the discussion then could proceed into whether or not the legality of corner crossing negatively impacts property owners.
If he sold it maybe! But that hasn't happened, if anything he might a break on his property taxes ... but I doubt it.
 

lenny4077

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Bit of a rambling post, i'll do my best so it makes sense.

If this goes for the good guys, would there be any specific boundaries at the corner? Would the corner crosser have to find and then pass directly over the corner pin, or would there be a right of way similar to a public road? What happens if there is no corner pin?

Would it be open to walk-in access only, or if there was a ROW, could someone drive an ATV?

I'm pretty sure there are some hefty fines for tampering with the pins, but would this lead to some/more landowners moving and/or removing the pins?

What happens when the corner is not accessible such as a cliff or waterway? Is that section just not accessible at that corner, or can someone float a boat (alpaca raft) in the case of a remote corner access? I'm not sure if a lake or pond would be considered 'public' if it's surrounded by private water and there's no historical commerce on it. would someone have to float directly over the corner? If it's a cliff, can someone parasail down and rock climb back up without crossing over too much airspace?

Will there be any teeth if a landowner closes off access, or would the public have to sue the landowner to open up the corner?

Personally, I want corner crossing, but I want it to be walk-in/float-in access only and within 10' of the pin when there is no obvious markers like a fence line or sign. In the case of a fence or sign, then directly over the pin is the only way to cross. I'm sure it would be less contested by land owners for walk in only at least.
 

Big Fin

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I sent over some of these questions by lumping them into general categories. Here are a few points as it relates to damages. These are my notes from the discussion. If the attorneys clarify some of this, I will edit it.

Damages do not come into play unless, and until, a court finds the hunters guilty of civil trespass. Until that happens, damages won’t enter into the discussion. So, if the hunters are found innocent, there is no damage discussion.


Financial damages are normally calculated as either:

1. Impairment of asset value

In this case, if the hunters are found guilty, they will be enjoined (prohibited) from trespass, so there would be no lasting impairment to the property. That will be hard to prove and will require appraisals from certified land appraisers. Impairment is a very difficult thing to prove with hard assets, absent a disposition as the result of the defendants’ action. Absent a disposition, it is a decision between the two appraisers hired by each side to determine what the property was worth prior to the defendants’ actions and what it is worth after the defendants’ actions.

If the hunters are found innocent, the court will have decided the hunters were exercising a public right to airspace. Can a court impose damages against a party found innocent and merely exercising a right they held? Not-guilty would be a finding that exclusive user of airspace is not a right the landowner held, so his rights were not damaged, rather the public's collective right was being exercised.

Now, if the hunters are found innocent, it will surely adjust the selling price of that ranch and similar ranches, as those ranch buyers went under the assumption that they controlled all airspace at the corners. If it is found that landowners do not have exclusive control of that airspace, I would expect a huge number of Errors & Omissions insurance claims against ranch brokers, selling agents, lawyers who failed to issue disclaimers on the rights of airspace, and possibly title companies.

The value of ranches listed as “10,000 acres” with the fine print stating “8,000 leased acres and 2,000 deeded acres” will probably go way down. And those who sold properties under such advertisements are likely to need really good attorneys. In fact, if the plaintiff loses this case after all appeals, I would suspect his attorneys will next turn their cannons toward the selling agent, the listing broker, and the legal counsel to the purchasing transaction.


2. Action of the Defendant results in loss of income or profits, both current and future.

Unless I am missing something, I did not see any facts of the case that the hunters interfered with any business activities that will cause lost income or profits.


3. Action of the Defendant causes additional expenses to be incurred; past, current, and future.

This could be valid. The landowner could have incurred additional costs and expenses for patrolling the property, legal costs, and many other expenses.
 

Big Fin

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I have tried to isolate the issues of law that will decide the case. The attorneys have provided some possible outcomes we will cover of the two main points of the case, with each point possibly being independent and separate from the other point:

1. Unlawful Inclosures Act (UIA) (the least important aspect of the case)

A. Landowner is found to have violated the (UIA) and is told to remove barriers.​
B. Landowner has not violated the UIA and does not have to do anything differently.​
C. Landowner has violated UIA and the court (via the appeals process) goes further in explaining/establishing the public's interest in airspace.​


2. Ownership of airspace at corners (the most important aspect of the case)

A. The hunters are found to have violated the landowner's exclusive right to the airspace at the corners and thus they have committed civil trespass. Damages will be calculated.​
Damages may be deemed to be ZERO or de minimis. If so, the action of the hunters is considered civil trespass, with no damages to the landowner, the same as the kid who walks across the corner of your lawn on his way home from school.​
Damages may be deemed to be significant.​
B. The airspace at corners is found to be held with some sort of common interest and not the exclusive right of just the private owners at the corner. If so, the hunter are found to not have violated any rights of the landowner and thus no damages apply.​
Expect a lot of discussion around what are the next steps, regardless of the findings in this case. Appeals are very likely, by either side if they find the outcome to be adverse to their interests. In a lot of respects, appeals will be where we get opinions that actually have some precedent and value to the future discussions around ownership of the airspace at corners.
 

Sytes

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for the podcast we are recording tomorrow.
Is this a live podcast today? I've listened to prerecorded podcasts. I'm not familiar with the process or if your podcasts are initially live...

If live: Is there a link to ask questions while listening to the conversation that you and (or) the attorney may find worthwhile to address during/after the conversation?

Last: If live - when does it begin?

Easy answer if not live. Looking forward to listening.
 

RunNGunSC

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I can’t wait to hear the discussion. I may have heard it on a prior podcast but can you clarify the argument that the intersecting point of air space is 1/2 owned by the public verses 1/4 owned by each adjacent property owner. How does this reality impact the arguments in the civil case? Why would his rights to the airspace take precedence. It looks like legislation has been introduced in several states to address this issue. How would the wording of those proposals solve or complicate the issue around corner crossing?
 

Big Fin

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I can’t wait to hear the discussion. I may have heard it on a prior podcast but can you clarify the argument that the intersecting point of air space is 1/2 owned by the public verses 1/4 owned by each adjacent property owner. How does this reality impact the arguments in the civil case? Why would his rights to the airspace take precedence?
That's one of the points that the court will have to sort out in this civil case.
 

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